An arbitration clause contained in company articles is null and void when it fails to provide that the appointment of arbitrators must be made by a person external to the company, even in the case of contractual arbitration (arbitrato irrituale), and is affected by supervening nullity which may be raised of the court's own motion from the date of entry into force of Article 34 of Legislative Decree N. 5/2003.
The theory of the "dual track" arbitration clause finds no justification in law, since Article 34 of Legislative Decree N. 5/2003 attributes the power to appoint arbitrators exclusively to persons external to the corporate structure in order to ensure the public policy principle of impartiality in arbitral decisions.
The provisions of Article 34 of Legislative Decree N. 5/2003 apply also to arbitration clauses for contractual arbitration (arbitrato irrituale), as clarified by the phrase "even non-ritual" contained in Article 35, paragraph 5, of the same law.